Excerpt: - .....which, in our view, is devoid of substance.2. the relevant facts are the following: one kumar sarat kumar roy was one of the appellants in the court of appeal below. he died between the conclusion of the hearing and the delivery of the judgment. apparently, the fact of the death was fact brought to the notice of the court with the result that the decree came to be drawn up in the name of sarat kumar roy who was dead at the time. thereafter, the present second appeal was preferred to this court by the legal representatives of the said kumar sarat kumar roy along with certain other persons. in the memorandum of appeal, the legal representatives of kumar sarat kumar roy named themselves, and along with the memorandum of appeal they filed an affidavit, stating the fact of kumar sarat.....

Judgment:

Chakravartti, J.

1. Two decisions, one of the Lahore High Court and another of the Allahabad High Court, have encouraged the appellants to raise a question of procedure which, in our view, is devoid of substance.

2. The relevant facts are the following: One Kumar Sarat Kumar Roy was one of the appellants in the Court of appeal below. He died between the conclusion of the hearing and the delivery of the judgment. Apparently, the fact of the death was fact brought to the notice of the Court with the result that the decree came to be drawn up in the name of Sarat Kumar Roy who was dead at the time. Thereafter, the present second appeal was preferred to this Court by the legal representatives of the said Kumar Sarat Kumar Roy along with certain other persons. In the memorandum of appeal, the legal representatives of Kumar Sarat Kumar Roy named themselves, and along with the memorandum of appeal they filed an affidavit, stating the fact of Kumar Sarat Kumar Roy's death and its date. The Registrar called for an application for substitution, and no application having been filed, the matter was sent up to the Bench for orders.

3. It is contended on behalf of the appellants that on the facts of the present case, no application for substitution is necessary, and the affidavit filed by them ought to suffice. In support of this contention, reliance is placed upon the case in Hira Mal v. Sundar Singh 20 A.I.R. 1933 Lah. 710 (a decision of the Lahore High Court) and the case in Chanderdeo Chaube v. Megh Narain : AIR1933All111 (a decision of the Allahabad High Court). The first of these decisions undoubtedly supports the contention of the appellants, but its value as an authority is practically nil as the learned Judges, beyond recording their opinion that they thought that no application was necessary, did not give any reasons for their opinion. In the Allahabad High Court case, however, certain reasons are given, but with reference to that case, it is to be noticed that, there, what the legal representatives filed was not merely the memorandum of appeal, but also an application for leave to proceed with the appeal as the legal representatives of the deceased party. There was, therefore, in substance, an application for substitution. In the course of his judgment, Nimatulla J. observed that.

no application for substitution of names is necessary, where a party dies between the date of the decree and the filing of the appeal.

This may be correct so far as the practice obtaining at the Allahabad High Court is concerned, but is not correct so far as this Court is concerned, as the learned Advocate for the appellants conceded.

4. It appears to us that apart from authority, the position that an application is necessary is inescapable. What Rule 6, Order 22, Civil P.C., provides is no more than this; that where a party dies between the conclusion of the hearing and the pronouncement of the judgment, the judgment shall have the same force and effect as if it had been pronounced before the death took place. The whole effect of that provision, therefore, is simply to transfer the death in point of time from its actual date forward to some date after the delivery of the judgment or to put it in another way, by a fiction, the judgment which was actually delivered some time after the conclusion of the hearing, is deemed to have been delivered on the date on which the hearing was concluded. The result, therefore, is that such cases are placed on the same footing as those in which a party dies after the decree of the lower court and before an appeal is filed to the Court of appeal.

5. It is quite true that Rules 3 and 4 of Order 22, which require a substitution to be made in the case of the death of a party contemplate pending proceedings, but an appeal, when preferred, is only a continuation of the suit, and the latter must be regarded in law as pending or continuing when an appeal is preferred from the decree passed therein. To judge the matter by another test, the appellants seek relief against a decree which prima facie did not concern them as the name appearing therein is that of somebody else. If they want to connect themselves with that decree and to be allowed to challenge it in an appeal, it is difficult to see how they can do so without obtaining the necessary leave from the Appellate Court and placing themselves in The shoes of their predecessor-in-interest. As I have said already, in cases where the death takes place between the date of the decree of the lower Appellate Court and The filing of the appeal to this Court, the practice has always been to file an application for substitution. The position in the present case being exactly similar by the operation of the fiction introduced by Rule 6, Order 22, Civil P.C., we do not see any reason why the same practice should not be followed in this case as well.

6. In our opinion, the Registrar was right in holding that an application was necessary and the legal representatives of Kumar Sarat Kumar Roy, if they desire to proceed with the appeal, must file one. The learned Advocate for the appellants prays for time till 25th November 1946, for making the necessary application. The time prayed for is granted. The application need not be a sworn one inasmuch as an affidavit has already been filed.